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THE 
ROYAL DISALLOWANCE 



BY. ^^ 



CHARLES M. ANDREWS 



Repiumted from the Phocbedinqs of the American Antiquarian Socihtty 
FOR October, 1914. 



WORCESTER, MASSACHUSETTS, U.S.A. 

PXJBLISHED BY THE SOCIETY 

1914 



.hi 



THE DAVIS PRESS 

WOBCESTBR, MaBSACHUSBTTS 



Gift 

America-i Hlstoricel Rcviow 

FEB 2 6 1925 



THE ROYAL DISALLOWANCE. 

BY CHARLES M. ANDREWS 



The royal disallowance of colonial laws, when con- 
sidered in all its phases, becomes a subject of far too 
wide a scope to be dealt with in the brief space at my 
disposal. I propose, therefore, to limit my discussion 
to one phase only, that which concerned the authori- 
ties at home. The influence of the disallowance in 
the colonies themselves is an intricate and difficult 
question that can be answered satisfactorily only 
after a thorough study has been made of the history 
of each individual colony. In what I have to say, 
I shall treat briefly of the early history of the dis- 
allowance, of the procedure accompanying its exer- 
cise in England, and of the rules that the British 
authorities laid down for their own guidance. No 
adequate attempt has yet been made to define these 
rules or to study in any systematic way the policy 
based upon them. One reason for this neglect is, 
undoubtedly, the belief that British policy was a 
negligible factor in colonial history and may be 
ignored by the historian. As I consider this belief to 
be erroneous, I deem it only a matter of common 
honesty to find out what this policy was, how far it 
was applied in dealing with colonial legislation, and 
to what extent it was justified from the point of view 
of England's constitutional past and the demands of 
her imperial and commercial systems. The evidence 
does not lie on the surface, but must be searched for 
in parliamentary acts, governor's instructions, and 
royal disallowances. 

The royal disallowance has been commonly inter- 
preted as if it were an act of royal legislation, and the 



Privy Council itself defined it as ''the negative which 
the crown has reserved to itself upon acts of legislation 
in the American colonies." But it was not an act of 
legislation in the same sense that a royal veto of a 
parliamentary bill was an act of legislation. The 
latter was the exercise by the king of his right as a 
constituent member of the British parliament. In 
exercising this right the king acted alone, making no 
use of the Privy Council, for the Council had no place 
among the law-makers of England. The royal dis- 
allowance was an executive rather than a legislative 
act, performed not by the king but by the Council 
as his executive agent. It was an exercise of the 
royal prerogative, an expression of the king's supreme 
authority in the enacting of laws by inferior law-mak- 
ing bodies, whose right to make laws at all rested on 
the king's will. The legislatures in the colonies were 
not parliaments, that is, from the legal point of view 
they were not in any sense comparable with the su- 
preme law-making body in England. It is true that 
they frequently made this claim and constantly exer- 
cised powers that lay beyond the bounds of their 
legal right, but properly their powers were only those 
of a provincial assembly or, in the case of the corporate 
colonies, of a provincial court with the right to legis- 
late for the good government of the company or fellow- 
ship. Except where the king had bound himself by 
his charters, he had the right at all times to prevent 
these assemblies from ''usurping authorities that 
were inconsistent with the peace and good govern- 
ment of the province." 

The royal disallowance was, therefore, not a veto 
but an act of regulation and control, in the same sense 
that a royal letter and instruction was an act of regu- 
lation. In fact, disallowance and instruction were 
synonymous, for both expressed in different forms the 
royal will. The Privy Council, which was the king's 
mouthpiece in the matter, frequently issued a new 
instruction instead of a disallowance; while in all the 



governors' instructions clauses were inserted that 
were dormant disallowances, in that they required 
the governors to refuse their assent to all measures of 
a certain class that might be passed by the provincial 
legislature. Thus the royal disallowance was but 
one of the means employed by the king, through the 
Privy Council, to confine the colonial legislatures 
within the constitutional bounds of their powers. 
The royal right was never defined and never denied, 
even by the colonies themselves, for the colonies were 
the king's colonies, such charters as they had came 
from him, their officials were his appointees, and all 
orders and instructions ran in his name. They were 
never "parcel of the realm," but were possessions 
of the crown of Great Britain. 

The right of disallowance was exercised from earliest 
times. Laws passed by the first assemblies in Ameri- 
ca, those of Virginia in 1619 and of Bermuda in 1620, 
were recognized as subject to the approval of their 
respective companies in England, and the laws of 
Bermuda were actually sent over for confirmation. 
The Massachusetts Bay Company in 1628-1629 
instructed its Salem plantation to send over all laws 
and orders for examination by the company at home. 
In 1629, five years after the Virginia colony had been 
taken over by the crown. Governor Harvey in his 
petition for a charter took for granted the king's right 
to approve or disapprove of the laws passed in the 
colony, and in the royal reply he was instructed to see 
that all laws and orders were transmitted and such as 
were allowed were to be but temporary and ''change- 
able at his Majesty's pleasure." In 1631 the bur- 
gesses of Virginia despatched the first collection of 
acts of a royal province ever sent to England. By 
1638 the practice had become well established. I 
know of no law actually disallowed at this early period, 
but one was suspended in 1638 and ordered ''to lie 
by" for further consideration. After 1660 the right 
was afl&rmed, and in 1663 the rule was laid down for 



Barbadoes that acts should be in force but one year 
unless confirmed. The rule was extended to two 
years in 1664 for Jamaica. One clause of a Barbadoes 
act was disallowed in that year, the first certain in- 
stance of a disallowance that I can discover. As far 
as the continental colonies are concerned, the first 
recorded disallowance is that of all the laws of Bacon's 
assemblji^ in 1676, hardly a disallowance properly so- 
called as the assembly was deemed irregular. 

The routine of transmission had got fairly well 
fixed before the end of the seventeenth century. 
Maryland, Connecticut, and Rhode Island were not 
required by their charters to transmit their laws, 
though all did so to a greater or less extent. The Car- 
olinas and the Jerseys likewise sent over no laws, until 
after they had become royal provinces. Massachu- 
setts was in the same class until 1684, but after 1691 
regularly transmitted her laws, while Pennsylvania, 
though a proprietary colony, was required to do so 
from the beginning. Before the end of the colonial pe- 
riod was reached, every colony had had one or more laws 
disallowed; during the eighty-three years of her 
second charter, Massachusetts had forty-seven public 
laws and twelve private laws disallowed; while with 
other colonies the number was much greater. The 
machinery of transmission was very far from perfect, 
even among the royal colonies. Many laws were 
never sent over; others were never acted upon or were 
held so long that months and even years elapsed be- 
fore a decision was reached. 

During the early period the English government 
was uncertain how to proceed. Before 1670 laws 
were acted upon by the Privy Council with the advice 
of its committee. In 1670 the special plantation 
council of that year was ordered to examine the laws 
of the colonies and if any were ''found inconvenient 
or contrary to the laws" of England or to the "honour 
and justice" of the government they were to be im- 
mediately annulled. But the special councils ap- 



parently took no action in the matter, for no reports 
issued by them relating to colonial acts have been 
found, and in 1674 the Shaftesbury council was still 
debating ''the best way for his Majesty to confirm 
the laws made by the plantations." In 1675 colonial 
business was again taken into the hands of the Privy 
Council and entrusted to its committee, the Lords of 
Trade, and then the procedure as finally adopted 
was introduced. Laws were sent from the colonies 
to both the Lords of Trade and the secretary of state, 
and by the former reported on to the Council, with 
or without the advice of the crown lawyers. The 
first reports recommending disallowance of acts regu- 
larly passed were in 1678, when certain acts of Jamaica, 
and others of Virginia, passed in February, 1677, to 
meet the situation raised by Bacon's Rebellion, were 
declared null and void. 

When fully developed the course of a law was some 
what as follows. The Privy Council, to which after 
1730 all laws were sent directly, handed over the laws 
to its committee. This committee was quite compe- 
tent to act alone, but generally referred the laws to 
the Board of Trade for report. In making up its 
report the board called upon a great variety of coun- 
sellors for advice: first, its own special solicitor, ap- 
pointed in 1718, or the regular law officers of the 
crown, who might and occasionally did reverse the 
opinion of the solicitor; then in special cases, other 
departments of government, the bishop of London, 
agents of the colony, ex-governors, or others familiar 
with colpnial affairs. Generally the board accepted 
the opinion of those consulted and the Council com- 
mittee accepted the report of the board. But this 
was not always the case. Each might reject the ad- 
vice of its referee and modify or reverse the verdict. 
But the Privy Council, almost without exception, 
approved the report of its committee and embodied 
that report in an order in Council. This order was 
always supposedly sent to the governor of the colony. 



8 

The procedure was neither perfunctory nor mechan- 
ical. In the passage of a law from referee to board 
and board to committee there was ample opportunity 
given to those concerned to check or accelerate its 
advance. Protests, petitions, and caveats might be 
entered against it, sometimes verbal and sometimes in 
writing, by agents or solicitors of the colony or of 
neighboring colonies, by merchants, by the bishop of 
London, and even by the governor who had signed 
the bill. Caveats were always recorded on the books 
of the board. Occasionally the law would be returned 
to the colony with instructions to the governor to 
obtain its modification or repeal, or it might be held 
until the colony met the objection that had been 
raised against it. Some lively tilts took place in the 
Plantation Office between those who favored a law 
and those who opposed it. In some instances the 
difficulty of reaching a decision was so great that the 
board refused to take the responsibility, leaving the 
matter entirely in the hands of the committee of the 
Council. Sometimes the board, not wishing to recom- 
mend disallowance, drafted an amendment or even 
a whole bill, and sent it over to be substituted for 
the measure passed. Should the colony refuse to 
pass the substituted clause or bill, the original measure 
was disallowed. Sometimes an act would be recom- 
mended for approval with the proviso that henceforth 
governors be forbidden to sign such acts, and some- 
times in recommending a disallowance the opinion 
was expressed that governors ought not to consent to 
such acts in the future. Frequently the act would be 
ordered "to lie by probationary" or 'Ho be post- 
poned," either until its effect could be better under- 
stood, until someone had been consulted, or until 
some complaint had been registered against it, after 
which it would be sent to the legal adviser. At least 
one act was read and ordered to be confirmed, then 
read again and ordered to lie by. Once or twice the 
board on its own initiative waited to hear from the 



9 

governor of the colony and on a number of occasions 
it promised the bishop of London or some interested 
individual to let him know when the law was to be 
considered. There is one instance where an act 
already confirmed was, on complaint of the merchants, 
afterwards disallowed, and one where the board in- 
structed the governor of a colony to obtain an amend- 
ment to an act that the Privy Council had already 
agreed to. 

Of course, all these attempts to be fair caused in- 
evitable delays. The board itself was often very 
dilatory; the legal adviser was slow in making his 
reports and sometimes failed to report altogether; 
and the time taken in communicating with agents or 
with the colony was at best exasperatingly long. 
For the royal colonies, a period of three years between 
the passage of a law and the issue of a disallowance 
was not uncommon. There are instances of five years 
elapsing, and in the case of a New Jersey law regard- 
ing lawsuits passed in 1714, the act was read June 
27, 1720, reported to be disallowed January 10, 1722 
and disallowed ten days later. The same act, passed 
again in 1728, was twice sent to the legal adviser 
and not finally disallowed until 1731. A Massachu- 
setts act of 1695 for the settlement and support of 
ministers was ''complained of by the parsons and sent 
to Mr. Attorney General" in 1727. One freakish 
case, and not the only one of its kind, was that of a 
New Hampshire law of 1718, which was not disallowed 
until 1769, when an additional act was passed in the 
colony and sent to England. When Fane retired in 
1746, he left without report a large number of laws, 
which had been sent to him three or four years before, 
and his successor, Matthew Lamb, to whom these 
laws were immediately despatched, left his own quota 
of unexamined laws at the time of his death in 1768. 
There was no regularly commissioned legal adviser 
from 1768 to 1770, though laws were sometimes sent 
to a "Mr. West," a solicitor whose identity has so far 



10 

eluded me. Jackson, who was appointed in 1770, 
was on the whole prompt in his replies. In 1766 so 
great a number of laws had accumulated that the 
Privy Council peremptorily ordered the board to ex- 
amine them and make report, which the board did so 
zealously as to overwhelm the Council committee 
with a mass of laws and recommendations that held 
up regular business for many days. It was inevitable 
that under such circumstances comments on colonial 
legislation should be hasty and inconsistent. All 
things considered, the wonder is that the criticisms 
were as good as we find them to be. 

The policy which governed the board and its ad- 
visers had four leading aspects. First, to defend the 
law and custom of the British constitution; secondly, 
to guard the interest and welfare of British subjects; 
thirdly, to protect the colonies or any of their inhab- 
itants from ill-advised legislation; and lastly, to pre- 
vent the passing of laws that were extraordinary, 
oppressive, improper, or technically defective. 

I. The first group of disallowances is the largest, 
though not necessarily the one that ranked as most 
important in the eyes of the English authorities. 
Departures from the law and custom of England were 
not infrequently permitted, if good reason could be 
adduced therefor, but laws that affected the welfare 
and prosperity of the subjects of Great Britain, and 
so of the state itself, were rarely allowed to go into 
force if the Board of Trade and the Council committee 
could prevent it. The welfare of the colonists them- 
selves was held in high consideration, provided it was 
not furthered at the expense of British subjects, and 
laws that were deemed in any sense injurious, either 
because of their content or because of their form, 
were always disallowed. 

As I have said, the first group is by far the largest. 
It includes, first, all laws that affected or trespassed 
on the royal prerogative, a power wide and uncertain 
and nowhere defined; secondly, all laws that were 



11 

contrary to the governors' instructions or in excess 
of powers granted by the charters, each of which was 
but an expression of the royal will; and thirdly, all 
laws that were contrary to or in derogation of any 
act of parliament specifically relating to the colonies, 
that went counter to English legal or administrative 
usage, or that were in opposition to the organization 
and practice of the Anglican church. Let us take 
these up in turn. 

1. No royal colony had a legal right to concern 
itself with such questions as the duration of the 
assembly, the qualification of electors or elected, or 
the number of those making up the legislative body. 
The assemblies could not legally decide questions 
of controverted elections or define their own powers. 
They could not legally grant representation to new 
townships or declare any part of the population 
debarred for any reason whatever from sitting in the 
assembly. These were regal powers, exercisable only 
through the colonial governor, the king's deputy in 
the colony, though at times other reasons had weight, 
such as the fear of the English authorities lest the 
popular branch of the colonial legislature should be 
increased and so destroy the balance between the 
assembly and the council. No royal colony had the 
right to appoint executive officers, either by law or 
ordinance. It could not restrict the functions of any 
patent office, the appointment to which always lay 
in the hands of the crown. It could not compel 
holders of such offices to reside in the colony. It 
could not render these offices less lucrative by at- 
tempts to regulate fees and perquisites to the disad- 
vantage of the incum^bents, or in any way to take 
away the rights and privileges belonging to such 
offices. The assembly of a royal colony could not 
appoint judges or chancellors who, though not neces- 
sarily patent officers, were nominees of the king only. 
It could not erect courts or decide where actions should 
be tried, nor could it interfere with the established 



12 

legal jurisdiction by grants of powers to new officials, 
such as sheriffs and justices of the peace. It could 
not alter the tenure of judges by declaring that they 
held office during good behavior and not at the king's 
pleasure, and it could not in any way restrict the king's 
freedom of appointment by defining qualifications 
or narrowing the range of selection. It could not take 
from the crown the right of hearing appeals from col- 
onial courts. 

In the same class of unconstitutional acts, but 
making a greater stir in colonial history, were all legis- 
lative measures looking to the control of the public 
purse. The Board of Trade recommended the dis- 
allowance of many acts whereby the colonial assem- 
blies sought to direct appropriations and the appoint- 
ment of colonial treasurers. It declared such acts 
contrary to the instructions of the governors, who 
alone could issue warrants for money. The board 
objected very strongly to the South Carolina Act 
regulating the Indian trade (1731) because it placed 
the power of making presents to the Indians in the 
hands of the assembly instead of the governor, who 
by his instructions had authority 'Ho issue all public 
money by his warrant with the advice of council." 
So vigorous was the quarrel over the question in New 
York, Massachusetts, and elsewhere, that it is not 
clear why the many acts passed by the assembly of 
North Carolina, between 1738 and 1773, practically 
taking the collecting and expenditure of public taxes 
out of the hands of the governor, were allowed to 
stand. But I cannot find that they were ever dis- 
allowed. The governor signed them, and one of them 
at least was returned by the legal adviser of the board 
endorsed "no objection." On the other hand, Jack- 
son in 1778 recommended the disallowance of a To- 
bago act on the ground that it required the governor 
to sign the warrants and so placed a restriction on 
the royal freedom of action. Voting the speaker a 
salary, appropriating any crown revenue, or dimin- 



13 

ishing in any way the revenue of the crown were all 
deemed repugnant to the royal prerogative. Even 
the establishment of fairs and markets was a royal 
privilege and could not be usurped. The Board of 
Trade watched over all revenue bills, and if it found 
a tack or rider in the form of an appropriation clause, 
it recommended the disallowance of the whole. Other 
acts in derogation of the royal authority were those 
altering a city charter granted by the king, as in the 
case of Norfolk, Virginia; conferring a monopoly, 
which could be created only by royal patent; author- 
izing naturalized subjects to hold property, affecting, 
as the disallowance said, "the king's rights derived 
from the laws and constitution of the kingdom"; or 
repealing an act that had once received the royal 
confirmation. 

2. In the same general class are all disallowances 
of acts passed contrary to the governor's instructions. 
That such were constantly passed we know, and that 
the governors were thereby often placed in very em- 
barrassing positions our colonial records show. Gov- 
ernor Johnston of North Carolina complained to the 
board of a great many acts that he had been compelled 
to sign, and there is one instance where in 1734 the 
governor of Barbadoes signed a bill and then apparent- 
ly sent home depositions and other testimony for the 
purpose of having it disallowed. The colonial assem- 
blies were masters of the art of persuading their 
governors that instructions did not mean what they 
seemed to mean, and the Board of Trade, three thou- 
sand miles away, was powerless to meet the difficult 
situation. Once when Dobbs of North Carolina, a 
highly conscientious man, attempted to justify his 
action, the board deemed the course adopted an ag- 
gravation of the offence, and declared that if the 
governor "could be dissolved by the opinions of 
others from the obligation of obedience," then "the 
interests of the crown and the mother-country must 
depend solely for security on the uncertain wills, inter- 



14 

ests, and instructions of any person whose advice 
and opinion the governor might think proper to ask." 
Despite brave words frequently uttered^ the board 
was not able even by the threat of a severe reprimand 
or the loss of his position to keep the colonial governor 
to his statutory obedience. 

Whenever a colonial assembly passed an act that 
exceeded its powers or was not properly cognizable 
by it as a law-making body, that act was disallowed 
as an infringement of the prerogative. Such hap- 
pened when one of the proprietary or corporate col- 
onies legislated contrary to its charter, as when Rhode 
Island set up a court of vice-admiralty, Connecticut 
dealt with heretics, and Massachusetts attempted 
to regulate the taking of fish within its harbors and 
the coves of its townships. Such happened in a 
royal colony when New Jersey inserted in a paper 
money act a clause concerning counterfeiting that 
was construed in England as a subject lying outside 
the province of the legislature. Matters not cog- 
nizable by a legislature were usually such as came 
within the jurisdiction of the courts and should have 
been dealt with in the ordinary course of law. Mass- 
achusetts passed acts fining certain persons who had 
aided the enemy and enabling a married woman to 
prosecute an action. New Hampshire passed acts 
relating to private property and enabling private 
persons to revive a suit at law. New York passed 
acts partitioning lands held in common; and New 
Jersey in 1771 passed an act regarding debtors, on 
which occasion the board laid down the general rule 
that ''the frequent and occasional interposition of 
the legislature in cases of individuals for the purpose 
of stopping or diverting usual courses of legal action 
is unjust," In the same class are all legislative acts 
of divorce, the first of which was passed in Jamaica in 
1739, and others in Nova Scotia (1763), Pennsylvania 
(1769, 1773), New Jersey (1773), and New Hampshire 
(1774). In 1773, the governors were directed by a 



15 

general instruction to allow no divorces by act of 
assembly. 

3. Many acts were disallowed because contrary 
to acts of parliament or because they conflicted with 
the prevailing English practice in like cases. Laws 
were disallowed that were contrary to the terms of 
the First Fruits Act of Henry VIII, the Navigation 
Acts, the Toleration Act, the Proclamation of 1704 or 
the Coinage Act of 1707, the Mutiny Act, the Barrack 
Act, the Patent Act, and the acts to prevent paper 
bills of credit, naturalizing foreign Protestants in 
America, and dealing with insolvency cases. Laws 
were disallowed that were construed as contrary to 
English usages touching outlawry, affirmation, secur- 
ity of the creditor, the ballot, the service of writs, 
the various conventions under the common law allow- 
ing a wife or divorcee to sell property, the legal juris- 
diction of local justices or city officials, and the meth- 
ods of obtaining divorce. The rule of the board was 
extended to things ecclesiastical as well as temporal, 
and laws that introduced variations from Anglican 
practices at home, such as the vestry acts of Maryland 
and North Carolina and the East Chester parish 
act of New York, were disallowed on the recommenda- 
tions of the bishop of London, who had a standing 
order with the board that he be informed whenever 
acts of an ecclesiastical character were under con- 
sideration. Laws that seemed intolerant and con- 
trary to the liberty of conscience enjoyed in England, 
such as the Massachusetts acts taxing Quakers and 
Anti-paedobaptists, the Connecticut act against 
heretics, and the Maryland act against Roman 
Catholics, suffered a like fate. 

II. Probably the most important of all the reasons 
for disallowance was that an act affected the trade 
and shipping of the kingdom or the privileges- and 
prerogatives of British subjects. In one sense such 
acts fall within the class of those that trenched upon 
the king's authority, for the royal prerogative had 



16 

"an ancient and special force in the government of 
trade," as seen in the grants of trading charters and 
of monopolies of trading privileges. Hence any law 
that placed the inhabitants, trade, and shipping of 
the colonies on a more advantageous footing than those 
of Great Britain was certain to be disallowed. Such 
were the South Carolina Port Act and the New Hamp- 
shire act for preventing frauds in the customs. Trad- 
ing companies, industrial and mercantile corporations, 
individual merchants, and others were alert to protest 
against all acts of this character, and their influence 
was very great, though not always decisive even at 
this time. The commissioners of customs and the 
treasury likewise registered their refusal to agree to 
many acts of this nature. All measures contrary to 
the Navigation Acts and laws liable to promote 
smuggling or to hamper trade, whether by sea or land, 
as in the case of the Massachusetts act for establishing 
sea-ports, the Maryland act altering the size of to- 
bacco casks, the New York act regarding peddlers, 
and the Virginia act dealing with the Indian trade, 
were regularly disallowed. In the case of the New 
York acts prohibiting trade with the French in Can- 
ada, the board very unwillingly recommended their 
disallowance on other grounds. The board regularly 
disallowed all Jamaica acts levying duties on negroes 
landed for refreshment only, and the Jamaicans as 
regularly ignored such disallowances. The govern- 
ors were specially instructed to veto any acts laying 
a duty on English or European goods imported in 
English vessels, and the board recommended the dis- 
allowance of all acts that came before it levying 
import dues on wines, liquors, English merchandise, 
and shipping. Such acts were passed at one time or 
another by Massachusetts (Shipping and Excise 
Acts), New York, Pennsylvania (import duties on 
liquors and hops), Virginia (Tonnage Act), Bermuda 
(Deficiency Act), and Antigua. The board also 
recommended the disallowance of certain export acts, 



17 

such as those of New Jersey imposing duties on tim- 
ber and copper ore and that of Georgia on hides. 
The Privy Council having issued an order in 1740 
prohibiting the export of sugar from the British sugar 
islands to any foreign island, all acts contrary to this 
order were always disallowed. 

As trade was extremely sensitive to all legislation 
touching money and credit, acts passed in the colonies 
that affected in any way the creditor class, to which 
as a rule the British merchants belonged, were viewed 
with the utmost disfavor. The governors had very 
positive directions upon this point and themselves 
vetoed a number of acts, which had they reached Eng- 
land would certainly have been disallowed. In the 
statute of 1707, the king reserved full right to refuse 
the royal assent to any measure passed in the colonies 
for settling and ascertaining the current rates of coins 
within the plantations. Acts of this character that 
came under the ban were those of Nevis regulating the 
use of French ''black dogs" (copper sous), of Jamaica 
raising the value of pieces of eight and regulating the 
value of Spanish milled money, and the Virginia act 
affecting rates of exchange. Though the land bank 
scheme of Massachusetts was brought to naught by 
act of parliament, that of Barbadoes was suppressed 
by order in Council, as ''imposing an intolerable hard- 
ship on creditors, damnifying his Majesty's revenue, 
and obstructing trade," while the Massachusetts 
excise law was disallowed because lessening the value 
of the goods imported and so affecting the trade of 
Great Britain. Almost all the debtor and bank- 
ruptcy laws of the colonies — Massachusetts, Virginia, 
North Carolina, and others — were considered injuri- 
ous to the British merchants, and when in 1771 Jack- 
son reported adversely on the Montserrat law attach- 
ing the goods, money, and chattels of persons absent, 
he said that laws of this description were almost 
universal in America and "were contrary to the prin- 
ciples requisite to the very foundations of commerce. " 



18 

Laws reducing the rate of interest were commonly 
disallowed, and the Bahamas law preventing vexatious 
lawsuits, and those of Pennsylvania estabUshing courts 
of judicature and of Virginia erecting a court of 
hustings at WiHiamsburg were annulled as prejudicial 
to the interests of the merchants. In this class fall 
the many acts providing for the issue of bills of credit, 
some of which w^ere confirmed and some disallowed, 
but this subject is too intricate and important for 
consideration here. In the same class also fall the 
acts, comparatively few in number, that were deemed 
likely to encourage manufacturing in the colonies, 
such as the Pennsylvania act preventing the sale of 
badly tanned leather for the making of shoes. All 
acts of this nature were construed as contrary to 
what England considered her best interest in the col- 
onies. 

III. The Board of Trade was always anxious to do 
all that it could to prevent the passing of laws that 
might be injurious to the colonies, and to modify its 
rules so far as to confirm measures that might strength- 
en or otherwise benefit them. The Barbadoes land 
title act designed to quiet possession was thought 
more likely to create disturbances and to lead to con- 
troversies at law, and the same was said of the New 
Jersey county court act. The various New York 
acts passed under Bellomont in favor of Leislerian 
claimants were disallowed for the good of the province, 
and a Massachusetts act of 1743 was deemed unjust 
because ''it had a retrospect to contracts made upon 
the faith of an act of 1741. " Acts imposing duties on 
slaves were thought to place a burden on the poorer 
planters, and the Jamaica law regarding slaves and 
free negroes was disallowed because working a hard- 
ship on free negroes and their descendants. The 
Antigua law keeping out Roman Catholics and 
the Jamaica law taxing Jews were considered injurious 
to their respective colonies, while all the acts of West 
Indian legislatures imposing a double tax on absentees 



19 

were interpreted as an unfair discrimination and a 
hardship to planters in England. Similarly, acts for 
checking the importation of slaves and keeping out 
criminals and poor and impotent people were disal- 
lowed, not only because in part contrary to the act 
of parliament for the transportation of felons, but 
also because likely to decrease the supply of labor and 
to hinder the populating of the territory. For the 
same reason all laws authorizing excessive grants of 
land to individuals were discouraged as hindering 
settlement. The New York act regulating the magis- 
trates of Kingston was disallowed as tending to the 
ruin of that town; the military law of Pennsylvania, 
passed in 1756, was similarly treated as likely to 
cramp the public service; while the North Carolina 
act to encourage the importation of British half- 
pence was thought to open the way to great frauds 
and abuses by the introduction of base and counter- 
feit coin to the detriment of the colony. 

Not only did the British authorities keep in mind 
the dangers likely to accrue to individual colonies by 
the passing of ill-advised legislation, but they extend- 
ed their interest to other and neighboring colonies 
and to the colonies as a whole. The North Carolina 
acts encouraging settlement and taxing Indian traders 
from Virginia were disallowed because they were 
thought to hamper trade and injure Virginia; the 
Georgia shipping act was held up until the agents of 
neighboring colonies could be consulted; the Penn- 
sylvania act advancing the rates at which foreign coin 
could pass was considered injurious to Maryland be- 
cause drawing away her hard money; the Massachu- 
setts act excluding New Hampshire notes was deemed 
a prejudicial measure; and when Virginia wanted to 
impose a tonnage duty for a lighthouse at Cape 
Henry, the act was disallowed as affecting Maryland 
trade and shipping. Any measure that was distinctly 
contrary to practices in other colonies was always 
held in suspicion, such as the Antigua act reducing 



20 

interest, those of Georgia and Nova Scotia for regu- 
lating courts, and that of Massachusetts for prevent- 
ing the spread of infectious diseases. 

At the same time the board and its advisers were 
always ready to stretch a point if an act was a real 
advantage, or what they thought was a real advantage 
to the colony, even though the law might be objec- 
tionable on other grounds. Laws that concerned only 
the private affairs or ''domestic economy" of the 
province, if proper, were allowed to stand, even 
though they were unlike anything known in England. 
Such, for example, were the Pennsylvania poor law 
and the Virginia act dealing with the method of trying 
criminals and the practice of pleading in court. The 
Pennsylvania act barring entailed estates was allowed 
in 1751, even though the legal adviser reported 
against it, because the people wanted it. Other acts 
were allowed, even though they differed more or less 
from the law of England, either because they were 
founded on local custom and usage and were not in- 
consistent with reason and natural justice, or because 
they were wise and proper and of importance to the 
happiness and prosperity of the people. In the case 
of St. Vincent in 1711, the board was not willing 'Ho 
press the customary laws of settled colonies or of 
England upon a newly settled island struggHng with 
difficulties, danger, and insecurity." 

IV. In the last group were laws that the board 
considered improper, illegal, extraordinary, or danger- 
ous, or technically open to criticism. Both Barbadoes 
and Maryland passed laws in an improper manner in 
the absence of the governor. Virginia passed an act 
appropriating money for the payment of members of 
a convention that had not been authorized to meet 
by the crown, and this was considered illegal. Num- 
bers of acts were declared incongruous and unreason- 
able, others extraordinary, irregular, vexatious, or 
dangerous, while still others were considered too 
summary in the powers conferred, oppressive, liable 



21 

to arbitrary abuse, or inquisitorial. That many laws 
drawn up in the colonies should have been technically 
imperfect is not surprising. As early as 1631, the 
burgesses of Virginia begged the king to excuse ''the 
forms of their acts," as men were wanting who were 
competent to draft them; and the same want of men 
versed in the technique of the law and the phraseology 
of legal instruments was characteristic of the entire 
colonial period. The situation improved after 1750, 
and almost no laws were disallowed after that date on 
technical grounds. But in the earlier years laws were 
sent over that the board thought likely to have the 
opposite effect intended, that contained words and 
phrases of loose and uncertain meaning, that were so 
carelessly penned as likely to be attended with great 
inconvenience in execution, or that were defective in 
omitting some necessary definition, qualification, or 
pertinent clause. Many acts had bad titles, or titles 
that were not in accord with the text of the acts, or 
titles that covered only a part of the act. Two Lee- 
ward Island acts, regarding the governor's house-rent, 
were so badly worded that, as the board said, the col-' 
ony bound itself to pay the rent to the governor 
should he cease to be governor but continue to reside, 
or should he continue to be governor but reside else- 
where. 

That the policy of the crown might not be applied 
too rigidly and that opportunity might be given for a 
careful consideration of the legitimate needs of the 
colonies, the Privy Council adopted the principle of 
the suspending clause, whereby provision was made 
that nothing in the act should have force, power, or 
efficacy until the king's will had been made known. 
An act of this nature stood suspended until the receipt 
by the governor of the order from England confirming 
or disallowing it, and it is worthy of note that in 1768 
the governor of New York wished to know what he 
should do in cases where neither confirmation nor dis- 
allowance had been received. In general, such clause 



22 

was to be added to all laws that departed from the 
rules already laid down. All private acts had to have 
not only a suspending clause but also a clause saving 
the rights of the crown. Instead of adding a suspend- 
ing clause, the assembly might send a draft of the 
bill to England or obtain the royal consent in some 
other way. The Board of Trade expressed itself very 
strongly on this subject, and once when in 1752 Vir- 
ginia petitioned against the obligation, it refused to 
listen to any abrogation of the rule whatever. Never- 
theless, it is a fact that the suspending clause was gen- 
erally ignored by the colonies and its insertion when 
required was rather the exception than the rule. 
Massachusetts, I believe, never employed it, and the 
requirement that it be added to bills of credit acts, 
enjoined in Belcher's instructions, was omitted from 
those issued to Shirley in 1741. The colonies thor- 
oughly disliked the suspending clause, and in later 
times as loyal a governor as Edward Long of Jamaica 
was emphatic in his denunciation of it. At times so 
manifest was the injustice of such a clause that the 
board, despite its rules, did recommend the confirma- 
tion of acts containing no suspending clause, where 
one should have been inserted. 

I have now considered in summary fashion but as 
fully as my space will allow, the disallowances of 
colonial laws that were ordered by the king acting 
through the Privy Council and the Board of Trade. 
The poUcy that underlay these disallowances was in 
accord with the terms of the British constitution 
of the seventeenth and eighteenth centuries and with 
the views held by British statesmen and merchants 
regarding the proper place of colonies in the British 
commercial and imperial scheme. The policy worked 
badly in operation, because of time and distance, and 
because the colonies in order to evade the requirement 
made a practice as often as possible of passing tem- 
porary laws to continue in force but a year, thus 
thwarting the royal will. Furthermore, the time 



23 

allowance, notably in the case of Pennsylvania, fre- 
quently led to the transmission of so many laws at 
once that the board was not able to examine them 
as thoroughly as it ought to have done, a situation 
the more objectionable because the board was not the 
best judge of colonial needs, upholding a constitution- 
al control that too often, even under the most favor- 
able circumstances, hampered colonial action and 
development. The position taken by the board and 
its advisers was constitutionally and legally correct, 
and their rules were not without ample justification 
in their own eyes. But these rules were not favorable 
to colonial independence and self-government, and 
they were not designed to be. As the colonists were 
rapidly growing m independence and in a determina- 
tion to govern themselves, it was inevitable that the 
disallowance should be frequently violated and 
brought to naught. Colonial self-government was in- 
compatible with the maintenance of the royal pre- 
rogative, yet the authorities at home, with colonial 
subordination and dependence as the leading objects 
of their policy, could hardly have acted otherwise 
than they did. The disallowance was neither un- 
constitutional nor designedly oppressive, but the 
British authorities and the colonists in America did 
not always see the colonial situation eye to eye in the 
same light. The colonists were fashioning their own 
constitutional order, but in so doing they were per- 
forming acts of legislation and government that were 
undoubtedly illegal and revolutionary, when con- 
strued not in terms of the democracy that was to be, 
but from the standpoint of English law and custom 
by which they were legally bound and of the English 
commercial system of which they were legally a part. 



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